Douthwaite v MEDISERVE Pty Ltd
[2023] WADC 56
•30 MAY 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DOUTHWAITE -v- MEDISERVE PTY LTD [2023] WADC 56
CORAM: STAUDE DCJ
HEARD: 28 SEPTEMBER & 1 DECEMBER 2022
DELIVERED : 30 MAY 2023
FILE NO/S: APP 45 of 2022
BETWEEN: MARTIN LAWRENCE DOUTHWAITE
Appellant
AND
MEDISERVE PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE
Coram: ARBITRATOR WALLBRIDGE
File Number : A94722
Catchwords:
Appeal - Workers' compensation – Appellant assaulted whilst in transit on journey from place of employment - Whether appellant suffered injury in the course of employment
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 5(1), s 18, s 19(2), s 247(7)
Result:
Leave to appeal granted
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr C P Shanahan SC |
| Respondent | : | Mr A A Nolan |
Solicitors:
| Appellant | : | Chapmans Barristers and Solicitors |
| Respondent | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Comcare v PVYW [2013] HCA 41; (2013) 250 CLR 246
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473
Lee v Transpacific Industries Pty Ltd [2013] FCA 1322
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Walker v Wilson [1991] HCA 8; (1991) 172 CLR 195
Westrupp v BIS Industries Ltd [2015] FCAFC 173
STAUDE DCJ:
Introduction
The appellant was engaged by the respondent to work as a remote area nurse at Papunya in the Northern Territory from 5 March 2020 to 27 March 2020. The appellant lived in Fremantle. The respondent agreed to arrange the appellant's travel to and from Papunya.
On 27 March 2020 the appellant was injured when he was assaulted in Alice Springs where he was staying overnight before his flight to Perth the following day. The appellant was struck on the back of the head and suffered lacerations and associated bruising in the occipital region and soft tissue injury to the neck (the injury).
The appellant subsequently claimed workers' compensation. The respondent denied liability. The appellant failed to satisfy the learned arbitrator that the injury was an injury by accident arising out of or in the course of the appellant's employment. The appellant seeks leave to appeal.
The facts
The facts as found by the arbitrator are not in dispute in the appeal and were as follows (Reasons [12] - [54]):
12.Mr Douthwaite normally resides in Perth, Western Australia.
13.Mr Douthwaite has been working as an agency nurse with MPL for several years.
14.From 5 March to 27 March 2020, Mr Douthwaite was working as an MPL agency nurse in the Northern Territory Aboriginal community of Papunya under a short-term contract.
15.Mr Douthwaite's travel and accommodation arrangements to and from Papunya were organised by MPL.
16.On Friday 27 March 2020, Mr Douthwaite completed his actual work in Papunya and was driven to Alice Springs. Mr Douthwaite's return flight to Perth was leaving from Alice Springs the next day.
17. At about 12 pm, Mr Douthwaite checked into the Mercure Hotel (the hotel) located at 34 Stott Terrace, Alice Springs.
18.At the hotel, Mr Douthwaite had a meal for lunch and drank a bottle of wine.
19.At about 5 pm, Mr Douthwaite left the hotel and went into town to a pharmacy to obtain some medicine as well as a bottle shop to buy another bottle of wine.
20.After returning to the hotel Mr Douthwaite drank more wine, caught up on some personal matters, and went to sleep.
21.At about 9 pm, Mr Douthwaite woke and rang room service to order a meal, however, room service was closed and there was no other meal service at the hotel.
22.Sometime after 9 pm, Mr Douthwaite walked into town to obtain a meal at an Indian restaurant. However, the restaurant was closed and Mr Douthwaite decided to walk back to the hotel.
23. It was dark.
24.Before he arrived back at the hotel, Mr Douthwaite met a group of about five teenage Aboriginal girls (the girls) who were walking towards him on the western side of the Stott Terrace bridge about 300-400 meters from the hotel.
25.Mr Douthwaite, who did not know the girls, engaged in some light-hearted banter with them.
26.The girls mentioned mugging Mr Douthwaite.
27.Mr Douthwaite was alert and thought to 'watch his back' and 'be careful' because of stories he had heard about Alice Springs but he was not fearful of the girls.
28.While talking to the girls, Mr Douthwaite asked whether they knew where a '7-Eleven' was so he could buy some food.
29.The girls told Mr Douthwaite they could take him to a Coles Express.
30.Mr Douthwaite walked with the girls in a westerly direction away from the hotel to a Coles Express.
31.During the walk to the Coles Express, Mr Douthwaite continued to engage in light-hearted banter with the girls.
32.Mr Douthwaite did not know where the Coles Express was.
33.The Coles Express is located on Larapinta Drive opposite Nicker Crescent in a Shell service station about one and a half kilometres west of the hotel.
34.At the Coles Express, Mr Douthwaite bought himself some roll‑your‑own tobacco.
35.Mr Douthwaite did not buy any food because he did not like the selection available.
36.Mr Douthwaite bought some 'frozen cokes' for the girls.
37.After purchasing the above items, Mr Douthwaite continued to walk with the girls in a westerly direction away from his hotel as the girls had invited him to come along with them.
38.Mr Douthwaite chose to continue socialising with the girls.
39.Mr Douthwaite was no longer looking for food.
40. Mr Douthwaite did not know where he was in Alice Springs.
41.At about 10:30 that evening, Mr Douthwaite ended up sitting in a park (the park) in the Araluen Cultural Precinct adjacent to Larapinta Drive. The ACP is located about two and a half kilometres west of the hotel.
42.At the park, Mr Douthwaite sat down with the girls and continued to engage in light-hearted banter with them. Two of the girls were playing with Mr Douthwaite's hair. Mr Douthwaite rolled a cigarette.
43.While at the park, Mr Douthwaite was hit on the head by an unknown person with an unknown object and briefly lost consciousness.
44.Mr Douthwaite does not remember what happened when he was hit on the head.
45.After regaining consciousness, Mr Douthwaite found he was bleeding from a laceration at the back of his head.
46.Two of the girls with him told Mr Douthwaite an unknown male struck him on the head with something and stole his wallet.
47.At about 10:37 pm, Mr Douthwaite called triple zero to report the incident and walked onto Larapinta Drive and waved down a vehicle.
48.The driver of the vehicle took Mr Douthwaite to the Alice Springs Hospital's emergency department.
49.At about 10:55 pm Mr Douthwaite was triaged.
50.At about 11:05 pm, Mr Douthwaite was assessed as having a 4 cm laceration and two smaller lacerations at the back of his head as well as some neck tenderness.
51.Mr Douthwaite's lacerations were sutured, and he was admitted overnight for observation.
52.A computerised tomography scan of Mr Douthwaite's head identified a large scalp haematoma consistent with the lacerations. No underlying skull fracture, intracranial haemorrhage, or brain contusion was identified. A CT scan of Mr Douthwaite's cervical spine was normal.
53.On 28 March 2020 at about 1 am, Mr Douthwaite's breath ETOH (alcohol) was recorded as 0.09.
54.On 28 March 2020 at about 12 pm, Mr Douthwaite was discharged and subsequently returned to Perth on or about 29 March 2020.
The arbitration
Before addressing the merits of the application, it is necessary to summarise the parties' positions at the arbitration and the reasons for the decision, because the case made by the appellant at arbitration, on which the arbitrator's decision was made, is somewhat different from the case made in the application.
It is apparent from the transcript and the parties' respective outlines of submissions that the arbitration proceeded on the basis that the application should be determined according to the principles set out by the High Court in the leading cases of Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473 and Comcare v PVYW [2013] HCA 41; (2013) 250 CLR 246.
The facts of Hatzimanolis v ANI Corporation Ltd were that the worker was employed to work at a remote mine site and was provided with accommodation and transport to and from the mine site. The worker was injured on a Sunday when he was not working but returning from a recreational excursion organised by his employer in a vehicle provided by the employer.
The High Court upheld his claim for workers' compensation on the basis that his injury was sustained during an interval or interlude occurring within an overall period or episode of work, and while he was engaged, with his employer's encouragement, in an activity which his employer had organised (476). The plurality (Mason CJ, Deane, Dawson & McHugh JJ) stated (484):
[I]t should now be accepted that an interval or interlude within an overall period or episode of work occurs within the employment if, expressly or impliedly, the employer had induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way.
The facts of Comcare v PVYW were that the worker was employed by a government agency. Her work required her to travel to a regional town for two days. She stayed overnight at a motel booked and paid for by the employer. In her room at the motel the worker engaged in sexual activity with an acquaintance in the course during which a light fitting above the bed was pulled from its mount, striking the worker on her face and causing injury.
The Administrative Appeals Tribunal rejected the worker's claim for compensation holding that although the injury was incurred at a place where the worker was induced or encouraged to be, the employer had not expressly or impliedly induced or encouraged the worker's sexual conduct which was not an ordinary incident of an overnight stay. The tribunal held that the worker was involved in a recreational activity which her employer had not induced, encouraged or countenanced. That decision was overturned by the Full Court of the Federal Court which held that it was sufficient for the worker to show that the injury was incurred at a place, namely, the motel, where the employer had encouraged her to be.
The High Court found for the employer (French CJ, Hayne & Crennan JJ, and Kiefel JJ, Bell & Gageler JJ dissenting). The majority held:
34It is important to identify how Hatzimanolis sought to define the circumstances for, and the extent of, an employer's liability for compensation. Hatzimanolis sought to provide a legal justification for an injury, which occurred between periods of actual work, being regarded as occurring in the course of the employee's employment. It did so by characterising the interval by reference to the employer's inducement or encouragement. The employer's liability in such circumstances depends upon what the employer induced or encouraged the employee to do. Hatzimanolis did not seek to extend the employer's liability beyond that.
35Because the employer's inducement or encouragement of an employee, to be present at a particular place or engage in a particular activity, is effectively the source of the employer's liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do. It is to be inferred from the factual conditions stated in Hatzimanolis that for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs.
36Moreover, it is an unstated but obvious purpose of Hatzimanolis to create a connection between the injury, the circumstances in which it occurred, and the employment itself. It achieves that connection by the fact of the employer's inducement or encouragement. Thus, where the circumstances of the injury involved the employee engaging in an activity, the question will be whether the employer induced or encouraged the employee to do so.
…
38The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next inquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? In some cases the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
39It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer's inducement or encouragement to be present at a place is not relevant in such a case.
Both parties accepted as a matter of fact that the appellant was in Alice Springs while on a journey from Papunya to Perth, but neither made a submission with respect to the application of s 19(2) of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA) (reproduced below) which provides relevantly, and in essence, that an injury incurred during a journey between a place of residence of the worker and the worker's place of employment, or during or after a substantial interruption of, or substantial deviation from, a journey that arises out of or in the course of the worker's employment, is not compensable.
The appellant's position was that for the entire period of time from when he left Perth to when he returned, he was in the course of his employment for the purpose of the definition of 'injury' in s 5 of the WCIMA, 'unless the respondent can prove something occurred to take him out of being in the course of his employment': appellant's outline of submissions dated 28 July 2021, [18]. The premise for this contention was that the respondent arranged and paid for the appellant's travel, including his accommodation in Alice Springs. At [46] the appellant submitted:
It ought to be concluded that the respondent the applicant to be in a place, being Alice Springs, and further or alternatively, induced or encouraged the applicant to be at places in Alice Springs incidental to transiting home through Alice Springs, including in the grassed area adjacent to the Museum of Australia.
In his closing address to the arbitrator, counsel for the appellant (Mr Lourey) expressly adopted the appellant's outline of submissions in which he submitted ([45] - [48]) that:
•he was required to stay at the hotel in Alice Springs on his way back to Perth;
•he had to make his own arrangements for meals;
•the hotel's room service was not available after 9.00 pm;
•it would be unreasonable for the respondent to expect him to remain in his room at the hotel until his flight the next day;
•it was reasonable for him to leave the hotel to seek to obtain dinner; and
•sitting in a park with a group of people to have a conversation was entirely reasonable and 'was not sufficient to sever the connection between the applicant's injury and his employment', it being 'a natural incident connected with the applicant being sent to Papunya and returning to Perth via Alice Springs'.
The appellant's submissions expressly relied upon the principles in Hatzimanolis and Comcare v PVYW. As illustrations of the application of those principles the appellant referred to Westrupp v BIS Industries Ltd [2015] FCAFC 173 and Lee v Transpacific Industries Pty Ltd [2013] FCA 1322. In those cases, the worker was found to have been injured in an interval between periods of actual work.
In Westrupp v BIS Industries Ltd, the worker was employed on a fly‑in/fly‑out basis. He was injured when he was assaulted by another employee outside a tavern in a camp where he was required to live while he was working. He attended the tavern between shifts. The Administrative Appeals Tribunal rejected his claim for compensation on the basis that the interval between his shifts was not an interval within an overall period of work. Its reasoning was that as he was working permanently at the campsite there was no 'overall' period of employment. In the alternative, the tribunal held that he was not engaged in an activity that was induced or encouraged by the employer.
The Full Court of the Federal Court (Buchanan, McKerracher & Katzmann JJ) allowed the appeal, holding that the worker's injury occurred in the course of his employment because it occurred in an interval or interlude within an overall period of work during which the worker was impliedly, if not expressly, induced or encouraged to spend his time at a place, that being in the vicinity of the camp site, and at the tavern, if he so chose. The court stated: 'It seems obvious that the first respondent should be taken to have accepted (and expected) that Mr Westrupp would make use of the facilities provided at Leinster, including the tavern, as incidents of his employment': Westrupp [34].
The court held that the tribunal's conclusion to the contrary failed to take into account properly the fly‑in/fly‑out nature of the employment, the temporary nature of the accommodation in which the worker lived, the one week respite afforded to the worker, the fact that the worker was only at the camp site as an incident of his employment, and the fact that while the worker remained at the camp he was under the control of the employer: Westrupp [52], [68], [73]. Noting other cases, the court observed at [67]:
If Mr Westrupp had been injured by a fire at his quarters while sleeping (Danvers) or whilst showering (Comcare v McCallum (1994) 49 FCR 199 ('McCallum')) or had been struck by a car while returning to his accommodation (Mather; see also Watson v Qantas Airways Ltd (2009) 75 NSWLR 539) ('Watson')) or had been assaulted by strangers while returning to his quarters after a meal and a few beers (Kennedy v Telstra Corporation (1995) 61 FCR 160 ('Kennedy')), then, on the authority of Danvers, and cases in this court and in other courts which have applied Hatzimanolis, he would have been entitled to compensation. We do not understand those authorities to have been overruled, expressly or by implication, by PVYW. The circumstances of the present case, in our view, are not materially different.
(full citations omitted)
At [53] the court held that it was not required as a condition of satisfying the definition of 'injury' that both the employee's presence at the place at which the injury occurred and the activity in which the employee was engaged were induced or encouraged by the employer. At [54] the court observed that in some cases, of which Comcare v PVYW was one, the employee's own conduct might indicate a lack of connection with employment.
In the present case, the respondent's position was that although it induced or encouraged the appellant to stay at the hotel, it did not induce or encourage him to be at the park where he was injured. Any connection between his stay at the hotel and his being at the park was severed by his unilateral decisions to leave the hotel, socialise with a group of girls, and go with them to the park where he was assaulted.
The respondent submitted that the activity in which the appellant was engaged when he was injured was not incidental to his employment: respondent's outline of submissions, [44] - [52]. The written submissions were expressly adopted by counsel. In oral submissions it was argued that the appellant going to and spending time at the park amounted to a deviation that took him outside the course of his employment, but there was no reference to s 19(2)(b) of the WCIMA as such.
The learned arbitrator observed that it was not in dispute that the appellant suffered an injury during an interval or interlude within an overall period or episode of employment. Applying the Hatzimanolis and Comcare v PVYW principles, the arbitrator held that although the respondent required, induced or encouraged the appellant to stay in Alice Springs 'during the interval after completing his contract as an agency nurse in Papunya and before flying back to Perth' (Reasons [74]), there was no sufficient connection between the injury and his employment to permit a finding that the injury arose out of or in the course of that employment (Reasons [90]).
The learned arbitrator found (Reasons [79]):
An objective assessment of the facts as found demonstrates the circumstances of the injury suffered by Mr Douthwaite were that when he left the Coles Express sometime around 10.30 pm:
i.he had been drinking alcohol during the day and returned a blood alcohol content breath test of 0.09% about two and a half hours after the assault;
ii.he had abandoned his search for food;
iii.it was dark;
iv.he did not know where he was in Alice Springs;
v.the girls were strangers to Mr Douthwaite and he had only just met them on the street;
vi.he heard the girls talk about mugging him;
vii.he was alert and understood he should 'watch his back' and 'be careful' while in Alice Springs;
viii.he walked with the girls in a westerly direction away from his hotel; and
ix.he decided to go to the park with the girls because he wanted to continue socialising with them.
Again, with reference to Hatzimanolis, the learned arbitrator observed that the case required 'an objective assessment of what [the appellant] was required, induced or encouraged to do by [the respondent], the general nature, terms, and circumstances of his employment and the circumstances of [his] injury' (Reasons [81]). He held that the respondent did not require, induce, or encourage the appellant to be at the park when he was assaulted (Reasons [84]), that his presence at the park was not an incident of his employment (Reasons [85]), and that the circumstances and place of the appellant's injury were not connected to his employment as an agency nurse transiting through Alice Springs on his way back to Perth (Reasons [86]). Accordingly, the injury did not arise out of or in the course of the appellant's employment (Reasons [91]).
Applicant's case on appeal
There is just one proposed ground of appeal which is that the arbitrator erred in law in failing to interpret and/or properly apply the definition of injury of s 5 of the WCIMA. The particulars as pleaded originally did not allege any specific error with respect to the application of the principles in Hatzimanolis and Comcare v PVYW, did not refer to s 19(2) of the WCIMA and did not contend that the arbitrator erred by characterising the appellant's journey as an interval in his work.
In his outline of submissions, the appellant contended that until he returned to Perth he was subject to the direction of his employer. It followed (as I understand the argument at [36] of the outline of submissions) that his time in Alice Springs was not an interval in his work. Rather, he was 'at work' until he returned to Perth. On this basis he submitted that he would be entitled to compensation unless his conduct disentitled him, as it would if, for example, there was a substantial interruption of, or substantial deviation from, a work‑related journey (as provided in s 19(2)(b) of the WCIMA).
The appellant in his outline of submissions then cited four errors by the arbitrator.
The first was that the arbitrator erred by confining the meaning of 'place' to the park, rather than Alice Springs. It was submitted that the arbitrator appeared to have found a 'substantial deviation' from the appellant's journey where none had been asserted. The appellant argued that his case was similar to that of the appellant in Westrupp.
The second was said to be the arbitrator's finding that the injury occurred after the appellant had completed his work contract. The contention seems to be that as the respondent had agreed to arrange his return to Perth, the appellant was in the respondent's employment while journeying to Perth.
The third was that the arbitrator's findings as to the 'general circumstances' were unduly confined in that they did not take account of the fact that the COVID‑19 pandemic restricted the availability of food at the hotel at the relevant time and was a reason for him leaving the hotel at night, such that 'the circumstances were directly referrable to the natural incidents of seeking a meal whilst in transit'. Likewise, there was nothing wrong with the appellant 'following a period of hard work having a few drinks and then [losing] his way whilst seeking to obtain food and engaging local people'. The appellant contended that the arbitrator's findings as to the general circumstances were 'prejudicial', notwithstanding the fact that the arbitrator found the appellant did nothing wrong.
The fourth was that the arbitrator's finding that the appellant did nothing to contribute to his injury and was not engaged in an activity that caused the injury contradicted his conclusion that the appellant's presence and activity at the park was not incidental to his work.
The appellant contended that as a result of these errors the learned arbitrator wrongly concluded that the injury was not incurred in the course of the appellant's employment. The appellant went on to submit that if the arbitrator approached the case as a 'deviation' case he erred, as to do so would deny the appellant natural justice. I understand this submission to mean that as the respondent did not contest the claim on the basis of a substantial deviation from a journey in the course of employment, it was not open to the arbitrator to decide against the appellant on that basis.
The respondent's position in relation to the four alleged errors may be summarised as follows:
1.The appellant contended before the arbitrator that this was an interval case as the appellant was induced or encouraged to be in a particular place at a time when he was not engaged in actual work. It is not the case that any injury suffered by a worker at a place at which the employer required the worker to attend is necessary an injury suffered in the course of employment. There had to be a connection between the injury and the circumstances in which it occurred and the employment itself. It was open to the arbitrator on the evidence to find that the appellant's actions in going to the park and socialising with the girls were inconsistent with his employment and were not induced or encouraged by the respondent.
2.The appellant's work as a nurse had concluded when he left Papunya. It was not disputed however that the appellant's travel was incidental to his employment.
3.Although the arbitrator did not refer to the COVID‑19 pandemic or the restricted availability of meals at the hotel, the arbitrator was not required to do so. The arbitrator gave sufficient reasons for his findings. The effect of COVID‑19 pandemic restrictions was not material to the decision. The arbitrator's unchallenged finding was that at the time of his injury the appellant had abandoned his search for food.
4.There is no inconsistency between the finding that the appellant did not contribute to his own injury or engage in an activity which caused that injury and the finding that the circumstances in which the injury was suffered were inconsistent with the general nature, terms and circumstances of his employment.
Amendment of particulars
At the first hearing of the appeal, senior counsel for the appellant submitted that the case was not an 'interval' case, as it had been argued below, but a 'journey' case that should have been decided by reference to s 19(2)(b) of the WCIMA, rather than upon the application of the Hatzimanolis and Comcare v PVYW principles. This contention was not pleaded in the notice of appeal. I decided, in fairness to the respondent, taking into account also the manner in which the appellant's case was advanced in the arbitration, that the proposed ground of appeal would have to be amended before that argument could be made.
Consequently, at the second hearing, the appellant sought and was granted leave to amend the particulars of the proposed ground of appeal to read as follows:
The Arbitrator erred in law in failing to interpret and or properly apply the provisions of paragraph (a) in the definition of 'injury' s 5 of the Workers' Compensation and Injury Management Act 1981.
Particulars
i.)The Applicant argued below that he suffered an 'injury' as defined in paragraph (a) in the definition of 'injury' in s 5 of the WCIMA on 27 March 2020, for which the Respondent denied liability pursuant to s 57A(3)(b) of the WCIMA.
ii.)In these circumstances the Arbitrator was required to properly construe and apply the provisions of s 5 of the WCIMA in accordance with the law, including the whole of the statutory scheme under the WCIMA as considered and explained by superior Courts.
iii.)At the time of his injury Mr Douthwaite was engaged in 'a journey' 'arising out of or in the course of the worker's employment' within the meaning of s 19(2)(b) of the WCIMA in that, as found by the Arbitrator, the Applicant was transiting through Alice Springs on his journey from Papunya to Perth (Reasons [68], [85] and [87]).
iv.)Section 19(2)(b) of the WCIMA provides a positive defence to a claim for workers' compensation for a worker's injury where an employer does not dispute that the worker suffered an injury during such a journey (Reasons [68]) but asserts and proves, relevantly, that 'the injury is incurred during, or after, any substantial interruption of, or substantial deviation from, the journey, made for any reason unconnected with the worker's employment'.
v.)On its proper construction the definition of 'injury' a s 5 of the WCIMA must work with s 19(2)(b) of the WCIMA, such that if a worker suffers an injury on a 'journey' within the meaning of s 19(2)(b) and the employer does not dispute that the worker suffered an injury (Reasons [68]), and either fails to rely on, or prove, one of the matters legislated for at s 19(2)(b), then that injury is compensable under the WCIMA, and falls within s 5.
vi.)Instead, the Arbitrator considered the task before him was to decide only whether there was '… a sufficient connection between the injury suffered by (Mr Douthwaite) and his employment …' under s 5 of the WCIMA and without reference to s 19(2)(b) of the WCIMA.
vii.)This error of the Arbitrator was compounded by the Arbitrator thereafter fundamentally misunderstanding and misapplying the decisions of superior Courts both (a) because those decisions related to statutory schemes other than the WCIMA, and (b) because he did so without reference to how the provisions of the WCIMA worked in the context of those decisions in respect of a 'journey' within the meaning of s 19(2)(b).
viii.)The Arbitrator, having found (Reasons [68]) that it was 'not in dispute' that the Applicant's journey was organised and paid for by the Respondent for the purpose of Mr Douthwaite transiting from his remote place of employment in Papunya to Perth through Alice Springs, and that he was injured whilst in Alice Springs, the appropriate legal test in the circumstances of this matter was to apply ss 5 and 19(2)(b) of the WCIMA. The Arbitrator failed to do so.
ix.)In the circumstances set out at (viii), where an employer fails to rely on, or prove, one of the matters legislated for at s 19(2)(b) of the WCIMA before an Arbitrator it is not open to that employer to then seek to do so on an appeal to this Honourable Court under s 247 of the WCIMA because of the structure of the statutory scheme, its necessarily beneficial construction and the rules of procedural fairness.
x.)The Respondent cannot avoid the requirements of s 19(2)(b) of the WCIMA by denying liability on the basis of s 5 of the WCIMA because the Applicant 'was in the park having had four glasses of wine prior to being assaulted', but whether it chooses to rely upon s 19(2)(b) is a matter solely for the Respondent.
xi.)There is no challenge to the Arbitrator's findings of fact and no appeal therefrom under s 247 of the WCIMA.
xii.)In the alternative to the matters at (iii) - (xi), were the Court to find that s 19(2)(b) of the WCIMA is not invoked by the Arbitrator's findings of fact, then the Applicant continues to assert that the Arbitrator failed to properly construe and apply the definition of 'injury' at s 5 of the WCIMA in that he:
(a)failed to consider, in that context, the ongoing nature of the Applicant's employment relationship with the Respondent at the time of the Applicant's injury;
(b)applied a too narrowly confined notion of 'place';
(c)failed to consider all relevant 'general conditions'; and
(d)failed to give full effect to his finding (Reasons [87]) that 'Mr Douthwaite did not contribute to his own injury or engage in an activity which caused the injury'.
Appellant's submissions on amended notice of appeal
In the appellant's further outline of submissions dated 12 October 2020 it is submitted that as the appellant's injury was incurred during a journey arising out of or in the course of his employment it was for the respondent to disprove his entitlement to compensation by showing that it was incurred during or after a substantial interruption of, or substantial deviation from, that journey made for any reason unconnected with the employment. As the respondent had not relied on s 19(2)(b) as a defence to the claim, the injury he incurred was compensable pursuant to s 18(1). At [34]:
What makes s 19(2)(b) of such importance in this case is that once one accepts, as the arbitrator found, that Mr Douthwaite was in transit on the journey organised and paid for by his employer to take him from remote employment back to Perth, then it is only s 19(2)(b) which legally frames the compensability of any injury his suffers during such a journey. It is a specific provision and it sets out what the respondent must establish and prove to avoid liability in this case …
(citations omitted)
The appellant argued that s 19(2)(b) was directed at a journey arising out of or in the course of the worker's employment as opposed to a place or activity. Hence, to be entitled to workers' compensation the appellant had only to show that the injury was incurred during a journey that was incidental to his employment. It was too late (in the appeal) for the respondent to rely on s 19(2)(b) as a defence because to allow the respondent to do so would breach the rules of procedural justice and require fresh findings of fact by the arbitrator.
In the alternative, the appellant maintained that the arbitrator had failed to properly construe and apply the definition of 'injury' in s 5 in that he:
(a)failed to consider, in that context, the ongoing nature of the Applicant's employment relationship with the Respondent at the time of the Applicant's injury;
(b)applied a too narrowly confined notion of 'place';
(c)failed to consider all relevant 'general conditions', and
(d)failed to give full effect to his finding (Reasons [87]) that 'Mr Douthwaite did not contribute to his own injury or engage in an activity which caused the injury'.
Respondent's submissions on amended notice of appeal
The respondent did not oppose the appellant being given leave to appeal and leave to amend, but observed that the appellant had made a different case on appeal from that made at the arbitration and that if the appellant had claimed compensation on the basis that he was injured during a journey in the course of his employment, the respondent would have directed submissions to the application of s 19(2)(b). That no submissions were made by either party in that respect was a function of the manner in which the arbitration proceeded.
The respondent submitted that s 19(2) does not operate to create 'defences', but rather to limit the operation of the phrase 'arising out of or in the course of employment' by excluding certain circumstances of injury. Furthermore, the section does not operate to render compensable every circumstance of injury not so excluded.
The respondent contended that if the arbitrator did fall into error as the appellant submits, by not treating the claim as one to which s 19(2)(b) applied, the outcome would have been no different. The undisputed findings of fact supported the conclusion that the appellant was injured during a substantial deviation from his journey. This court, the respondent submitted, upon a review of the evidence could so find having the power prescribed in s 247(7). No procedural unfairness would be suffered by the appellant as the issue had always been whether the injury arose out of or in the course of employment.
Statutory provisions
Liability for workers' compensation is imposed by operation of s 18 of the WCIMA. Section 18(1) provides:
If an injury of a worker occurs, the employer shall, subject to this act, be liable to pay compensation in accordance with Schedule 1.
'Injury' is relevantly defined in s 5(1) as:
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions …
Section 19 provides:
Personal injury by accident arising out of or in course of employment, meaning of
(1)Without limiting the generality of section 18, a worker shall be treated as having suffered personal injury by accident arising out of or in the course of the worker's employment if the injury occurs -
(a)during the worker's attendance at a place for educational purposes if -
(i)the attendance is required by the worker's terms of employment or apprenticeship; or
(ii)the attendance is for the purpose of, or in connection with, the worker's employment with the employer and the employer agrees to the attendance;
or
(b)during the attendance at a place for treatment or attendance of a kind referred to in clause 17 of Schedule 1; or
(c)during the attendance at a place for the purpose of receiving payment of compensation to which the worker is entitled under this Act.
(2)A worker shall not be treated as having suffered personal injury by accident arising out of or in the course of the worker's employment if the worker suffers an injury -
(a)during a journey -
(i)between a place of residence of the worker and the worker's place of employment; or
(ii)between a place of residence of the worker and a place mentioned in subsection (1); or
(iii)if the worker has more than one place of residence, between those places; or
(b)during a journey arising out of or in the course of the worker's employment if the injury is incurred during, or after, any substantial interruption of, or substantial deviation from, the journey, made for any reason unconnected with the worker's employment or attendance mentioned in subsection (1).
(3)In subsection (2) -
place of residence includes a place of temporary residence;
substantial interruption prima facie includes any interruption of the journey for a period of more than one hour.
Leave to appeal
The appellant requires the court's leave to appeal: s 247(1) of the WCIMA. As this is not a case in which an amount of compensation is at issue, the appellant must demonstrate that a question of law is involved. A decision does not involve an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different': Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].
The appellant argues that the question of law is the proper construction of s 5(1) and its application by the arbitrator in circumstances where:
(1)the arbitrator's findings of fact establish that Mr Douthwaite was engaged in 'a journey' 'arising out of or in the course of the worker's employment' within the meaning of s 19 to be of the act in that, as found by the arbitrator, the applicant was transiting through Alice Springs on his journey from Papunya to Perth (reasons [68], [85] and [87]) (minute, particulars 5(iii)), and
(2)it was not in dispute that Mr Douthwaite suffered an injury during that journey (reasons [68]), (minute, particulars 5(v)).
The respondent does not oppose the application for leave. I am satisfied that the proposed appeal involves a question of law and that leave should be granted.
Section 247(5) of the WCIMA provides that an appeal to this court is to be by way of review of the decision appealed against, and s 247(7) provides that upon hearing an appeal this court 'may affirm, vary, or quash the decision appealed against, or substitute, and make, in addition, any decision that should have been made in the first instance'. Once a question of law is involved the whole decision appealed from is open to review: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18].
Analysis
By virtue of the definition of injury in s 5 of the WCIMA, the test of compensability in s 18 is whether the index injury is an injury by accident arising out of or in the course of employment. In cases where the worker is engaged in actual work when injured the required nexus will be conspicuous. In other cases where the worker is not at work, but the injury occurs within an 'overall period of work', there must be a connection between the circumstances in which the employee sustains injury and the employment: Comcare v PVYW [50].
At the arbitration the appellant sought to show a nexus between the circumstances of his injury and his employment merely on the basis that he was staying in Alice Springs on his way back to Perth when he was injured. However, as the majority observed in Comcare v PVYW at [46]:
Nothing said in Hatzimanolis supports the notion that the employer is to be liable for an injury which occurs when an employee undertakes a particular activity, if the employer has not in any way encouraged the employee to undertake that activity, but had merely required the employee to be present at the place where the activity is undertaken.
In fact, the majority found that two points made in the joint reasons suggested the contrary. First, it was accepted (Hatzimanolis [59]) that an employee would not necessarily be in the course of his employment while engaged in an activity during an interval in his overall period of work unless the employer had expressly or impliedly induced or encouraged him to engage in that activity. Second, it was said (Hatzimanolis [60]) that it would be an 'unacceptable extension' of the course of employment to hold that an employee was within the course of employment whenever the employer had authorised, encouraged or permitted an employee to spend time during an interval between periods of work at a particular place or in a particular way.
The terms of the contract were in evidence before the arbitrator (Exhibit A‑10), as were the appellant's pay records (Exhibit A‑27). The contract provided that while working at Papunya, the appellant would be paid an hourly rate for a 76‑hour fortnight (with loadings and on‑call allowances), and that the respondent would arrange (and pay for) his travel. There is nothing uncommon about that form of employment. The appellant was not 'at work' when he was in Alice Springs awaiting his flight to Perth, yet as the respondent conceded, he was there in the course of his employment because his contract provided for his travel to and from his nursing placement, including his overnight accommodation.
Thus at arbitration there was no issue as between the parties that the appellant's injury was sustained in an interval within an overall period of employment, the claim being resisted on the basis that neither the respondent nor the circumstances of his employment required (or induced or encouraged) the appellant to go at night to a place remote from the hotel where he was staying and socialise with other persons such that there was no nexus between the circumstances of the injury and the employment.
The arbitration being framed in this way, it is understandable that on the facts as found, none of which is challenged in this appeal, the learned arbitrator found for the respondent.
The arbitrator's determination of the issue put to him was completely orthodox and accorded with the authorities to which he was referred and that were cited in the Reasons. He found on the facts that the appellant was not required, induced or encouraged to be at the place where the assault occurred, being a park some 2.5 km from the hotel at which he was staying. Nor was he required, induced or encouraged to engage in social activity at the park. The appellant was in every sense on a frolic of his own unrelated to his employment. The learned arbitrator's decision conforms entirely to Comcare v PVYW.
None of the errors contended for by the appellant in the particulars of the ground of appeal (xii)(a) - (d) vitiates the conclusion of the arbitrator.
The arbitrator did not fail to consider the ongoing employment relationship with the respondent at the time of the injury. The appellant proposed, respondent conceded and the arbitrator accepted, that being in Alice Springs was an incident of the appellant's employment even though he had finished the work he was contracted to do (Reasons [74]). No error has been shown in the arbitrator's analysis at [74] - [78].
The learned arbitrator did not confine the meaning of 'place' unduly. In fact, he remarked that he was mindful not to do so (Reasons [76]). The issue of place was not as simple as the appellant contended. The arbitrator was correct in law to hold by reference to Comcare v PVYW that mere presence at a place does not necessarily provide a sufficient connection to employment to establish liability, and correct in fact to find that the circumstances and place of the appellant's injury were not sufficiently connected to his employment (Reasons [86]) to render it compensable.
The arbitrator did not err in treating the place where the injury was incurred as the park rather than the township of Alice Springs. Nor, for that matter, did the arbitrator err by not finding that it was incident of the appellant's employment that in the particular circumstances that obtained, including COVID‑19 restrictions, it was reasonable to go out to look for food. The arbitrator's express finding was that by the time he was injured in the park he had abandoned his quest for food.
The arbitrator's finding that the appellant did not contribute to his injury or engage in conduct in an activity that caused the injury does not contradict the finding that the circumstances of his injury were unrelated to his employment. The respective findings are upon discrete issues. It was accepted by the appellant that gross misconduct would sever the required nexus between the circumstances of his injury and his employment. The arbitrator's finding went to that question. It exonerated the appellant. The adverse finding was not inconsistent with an absence of misconduct. Rather, it went to the question of whether the appellant's actions that night were incidental to his employment.
Turning then to the nub of the appellant's case as argued which is whether the claim should have been decided on the basis that injury was incurred while the appellant was on a journey in the course of his employment, the question is whether the arbitration ought to have been determined by reference to s 19(2) of the WCIMA, and if so, whether a different outcome would have resulted.
Section 19 qualifies the definition of 'injury' in s 5(1) of the WCIMA in two ways. Section 19(1) provides that, without limiting the generality of s 18, a worker will be treated as having suffered personal injury by accident arising out of or in the course of employment if the injury occurs:
(a)during the worker's attendance at a place for educational purposes if -
(i)the attendance is required by the worker's terms of employment or apprenticeship; or
(ii)the attendance is for the purpose of, or in connection with, the worker's employment with the employer and the employer agrees to the attendance;
or
(b)during the attendance at a place for treatment or attendance of a kind referred to in clause 17 of Schedule 1; or
(c)during the attendance at a place for the purpose of receiving payment of compensation to which the worker is entitled under this Act.
Section 19(1) effectively deems a worker's attendances at certain places to be in the course of employment so as to render an injury suffered during such an attendance an injury for the purpose of s 18. Section 19(2) on the other hand excludes from the statutory meaning of 'injury' an injury suffered in either of two discrete circumstances.
The first is if the injury is incurred during a journey between the worker's place of residence and their place of employment (s 19(2)(a)). The second is where the injury is incurred during 'any substantial interruption of, or substantial deviation from' a journey arising out of or in the course of employment that is made for any reason unconnected with the worker's employment (s 19(2)(b)).
Although the appellant may be seen to have been travelling between his place of employment and his residence, it was common ground that the first limb (s 19(2)(a)) does not apply in this case. The respondent conceded, rightly, that by reason of the terms of his employment the appellant's journey from Papunya to Perth was a journey in the course of employment.
The focus is therefore on the second limb of the subsection. The WCIMA does not define 'journey'. Its ordinary meaning is a course of travel from one place to another. In this case the journey can be seen to be from Papunya, the place where the appellant was contracted to work, and Perth, and to include the period in which he was in transit at Alice Springs. The respondent does not cavil with this proposition.
If, then, the stay in Alice Springs is seen as part of a journey in the course of his employment, the appellant would be entitled to compensation unless the injury was incurred in one or other of two particular circumstances unconnected with the worker's employment.
As defined in s 19(3) ' "substantial interruption" prima facie includes any interruption of the journey for a period of more than one hour'. An interruption means a break in an otherwise continuous course or process. It connotes a break that is not normal, planned or anticipated. It is not a word apt to describe a period of time necessarily spent in the undertaking of the journey: see Walker v Wilson [1991] HCA 8; (1991) 172 CLR 195 (Brennan J at [8]). 'Substantial deviation' is not defined. Deviation ordinarily means a departure or digression from a normal or expected course. 'Substantial' bears its ordinary meaning of significant in this context. In Walker v Wilson, Brennan J said at [8]:
Substantiality is to be assessed by reference to the circumstances of each case which include not only the terms and conditions of the worker's employment but also the exigencies of the journey and the personal circumstances of the worker.
As I noted at [21] above, the respondent argued before the arbitrator that the appellant's actions in going to the park and socialising with the teenage girls he had met constituted a deviation from the course of his employment. No doubt had the appellant's claim been based on him being on a journey rather than in an interval in his employment the submission would have been that it amounted to a substantial deviation from that journey.
Section 19(2)(b) can be seen to exclude from compensability an injury incurred during a journey in the course of employment in two circumstances (substantial interruption and substantial deviation) if they are unconnected with the employment.
The word 'unconnected' in that context resonates with the basal principle of liability enunciated in Hatzimanolis and clarified in Comcare v PVYW. The joint reasons of the majority in the latter decision trace the development of the principle that there needs to be a factual connection between the circumstances of the injury and the employment: Comcare v PVYW [17] - [26], [50] - [60].
It is clear from the outlines of submissions in the arbitration and the transcript of the hearing, as I have remarked earlier, that s 19(2), though mentioned in the respondent's outline, was not invoked by either party. The appellant sought to establish the respondent's liability on the basis that his injury was incurred during an interval in an overall period of employment when he was at a place where he was required by the respondent (and the circumstances of his employment) to be, namely Alice Springs. Having so characterised the injury, the appellant invited the learned arbitrator to decide the claim on that legal basis. Applying the relevant principles to the facts as found, the learned arbitrator decided, correctly in my view, that there was no nexus between the circumstances of the injury and the appellant's employment.
It is now submitted by the appellant that it was for the respondent to raise as a defence one or other of the disqualifying circumstances in s 19(2)(b). The respondent's notice disputing liability (Form 3A) lodged pursuant to s 57A(3)(b) of the WCIMA simply states as the reason for the dispute that the worker did not sustain an injury in the course of employment. Such a position can be taken to indicate a threshold dispute as to liability pursuant to s 18. The meaning of 'injury' in that section, as defined in s 5(1), is qualified by s 19. Thus, the terms of the notice of dispute do not prelude reliance on s 19(2)(b) and, in fact, as noted above, the respondent's outline of submissions in the arbitration adverted to that provision.
The arbitral process commences with a referral by a conciliation officer. The certificate of outcome of the conciliation officer (issued under s 182O) dated 23 October 2020 cited the issue for determination to be whether the injury occurred in the course of the appellant's employment.
It is common cause that the injury was suffered during a journey arising out of, or in the course of, his employment. In hindsight the issue should have been whether in fact the injury was incurred during a substantial deviation from the journey for a reason unconnected with the worker's employment.
That issue can be decided on the facts found by the arbitrator. This court has power pursuant to s 247(7) of the WCIMA to 'substitute, and make in addition, any decision that should have been made in the first instance'. No prejudice or breach of the rules of natural justice is occasioned by the court deciding the issue on the facts as found.
On 27 March 2020 the appellant was on a journey from Papunya to Perth that involved a one-night stopover in Alice Springs where the appellant was provided with accommodation at the Mercure Hotel. The following day the appellant was expected to travel from the hotel to the Alice Springs airport for his flight to Perth.
Some time after 9.00 pm on 27 March 2020 the appellant left the Mercure Hotel because no food service was available. He walked into town to obtain a meal. He was unsuccessful. As he was returning to the hotel he met a group of teenage Aboriginal girls. At this point he was 300 ‑ 400 m from the hotel. The appellant went with the group of girls to a Coles Express shop some 1.5 km west of the hotel, again in search of food. From the Coles Express shop the appellant went with the same group of girls to the Araluen Cultural Precinct which is some 2.5 km from the hotel. He was no longer looking for food. The appellant was socialising with the group of girls at the park when he was assaulted and injured at about 10.30 pm.
The appellant leaving the hotel and going in search of food was a deviation from the journey arranged by the respondent but was not I find a substantial deviation, applying the obiter dictum of Brennan J in Walker v Wilson referred to at [68] above. However, by proceeding from the Coles Express shop and going with the group of girls to the park in order to socialise with them the appellant did deviate substantially from the journey. He did so for a reason that was unconnected with his employment.
The appellant going to the park was a deviation from his journey because he was not required for the purpose of that journey to go anywhere from the hotel but to the airport. It was substantial, that is, significant, in all the circumstances. It took him late at night in the company of persons he did not know from a secure place of accommodation to a public space some 2.5 km away. The only reason for the deviation was to socialise with a group of girls. That reason was not connected with the appellant's employment.
In the result the learned arbitrator's decision should be affirmed and the appeal dismissed. Although on my analysis the arbitrator ought to have applied s 19(2)(b) of the WCIMA to the facts, his failure to so (which was due to manner in which the claim was argued) does not vitiate his decision to dismiss the appellant's claim.
The operation of s 19(2)(b) is consistent with the principles in Hatzimanolis and Comcare v PVYW and does not permit a different outcome in this case.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
Associate to Judge Staude
26 MAY 2023
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